Difference between revisions of "Independent Review Process"

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==Overview==
 
==Overview==
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The IRP provides a means for claimants to bring their dispute with ICANN to a third party arbiter.
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The IRP provides a means for claimants to bring their dispute with ICANN to a third party arbiter. It is an arbitration mechanism that seeks to establish precedent and predictability of interpretation of ICANN policy and principles, as well as create an alternative forum for resolving disputes.
  
 
==Background==
 
==Background==
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The development of the [[Independent Review Policy]] began in March, 1999. The initial [[ICANN Board]] appointed a 10-member [[Advisory Committee on Independent Review]] in-charge in developing the principles to structure independent review procedures in compliance with the ICANN Bylaws. On May 7, 1999, the Advisory Committee submitted its interim report with draft principles and an addendum for public review and comment. The documents were publicly discussed during the ICANN meetings held in [[ICANN Berlin|Berlin]] in May, 1999. After deliberations, the ICANN Board accepted the draft principles and the Advisory Committee was instructed to complete its task.<ref>[http://www.icann.org/en/committees/indreview/irac-interim-report.htm Interim Report of the Advisory Committee on Independent Review, May 7, 1999]</ref><ref>
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The development of the [[Independent Review Policy]] began in March, 1999. The initial [[ICANN Board]] appointed a 10-member [[Advisory Committee on Independent Review]] in charge of developing the principles to structure independent review procedures in compliance with the ICANN Bylaws. On May 7, 1999, the Advisory Committee submitted its interim report with draft principles and an addendum for public review and comment.<ref>[http://www.icann.org/en/committees/indreview/irac-interim-report.htm Interim Report of the Advisory Committee on Independent Review, May 7, 1999]</ref><ref> The documents were publicly discussed at [[ICANN 02 - Berlin|ICANN 2]] in May 1999. After deliberations, the ICANN Board accepted the draft principles and the Advisory Committee was instructed to complete its task.
 
[http://www.icann.org/en/minutes/minutes-27may99.htm#iracrecommendations ICANN Minutes of Meeting, May 27, 1999]</ref>
 
[http://www.icann.org/en/minutes/minutes-27may99.htm#iracrecommendations ICANN Minutes of Meeting, May 27, 1999]</ref>
  
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On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board introduced the document for public discussion and accepted it during its meeting in [[ICANN Santiago|Santiago]] in August, 1999.<ref>[http://www.icann.org/en/minutes/minutes-26aug99.htm#independentreview ICANN Minutes of Meeting August 26, 1999]</ref>  
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On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board published  the document for public comment, and accepted it at [[ICANN 3 - Santiago|ICANN 3]] in August 1999.<ref>[http://www.icann.org/en/minutes/minutes-26aug99.htm#independentreview ICANN Minutes of Meeting August 26, 1999]</ref>  
  
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During the ICANN Meeting in [[ICANN Cairo|Cairo]] held in March, 2000, the ICANN Staff submitted the proposed Independent Review Policy. The policy  was a guideline on how to implement the principles recommended by the Advisory Committee.<ref>
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During [[ICANN 5 - Cairo|ICANN 5]],, the ICANN Staff submitted the proposed Independent Review Policy. The policy  was a guideline on how to implement the principles recommended by the Advisory Committee.<ref>
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[http://www.icann.org/en/meetings/cairo2000/proposed-indreview-policy.htm Proposed Independent Review Policy]</ref> The policy was adopted by the ICANN Board on March 10. An [[Independent Review Panel Nominating Committee]] was delegated to nominate 9 members who will comprise the IRP.<ref>[http://www.icann.org/en/committees/indreview/nomcom.htm Independent Review Panel Nominating Committee]</ref>
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[http://www.icann.org/en/meetings/cairo2000/proposed-indreview-policy.htm ICANN 5 Archive - Proposed Independent Review Policy]</ref> The policy was adopted by the ICANN Board on March 10. An [[Independent Review Panel Nominating Committee]] was delegated to nominate 9 members who would comprise the Independent Review Panel.<ref>[http://www.icann.org/en/committees/indreview/nomcom.htm Independent Review Panel Nominating Committee]</ref> The initial members of the IRP Nominating Committee included:<ref>[http://www.icann.org/en/committees/indreview/nomcom.htm Independent Review Panel Nominating Committee]</ref>
 +
* [[Tim Berners-Lee]]
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* [[Scott Hemphill]]
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* [[Olivier Iteanu]]
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* [[Ching-Yi Liu]]
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* [[Joon Kook Park]]
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* [[Houlin Zhao]]
  
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On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membersship on the IRP within 90 days.<ref>
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On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membership on the IRP within 90 days.<ref>
 
[http://www.icann.org/en/minutes/prelim-report-07may01.htm#01.50 Special Meeting of the Board Preliminary Report May 7, 2001]</ref> Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001.<ref>[http://icannwiki.com/index.php?title=IRP&action=edit&section=1 Open Call to the Internet Community For Nominations to the ICANN IRP]</ref> The IRP Nominating Committee was unsuccessful in completing the list of candidates for the IRP Panel on the deadline set by the ICANN Board and requested an extension. During the ICANN Meeting in Montevideo, the Board approved the request of the IRP Nominating Committee and extended the deadline to submit the list of the candidates for the IRP until October 15, 2001.<ref>[http://www.icann.org/en/minutes/prelim-report-10sep01.htm#ScheduleforIRPNomCom Regular Meeting of the ICANN Board in Montevideo Preliminary Report]</ref> The IRP Nominating Committee was not able to provide a complete list during the extended deadline. Only three members of the committee submitted a list of 9 nominees while the other members did not participate in the process. A report on the status of the committee was submitted during the ICANN Meeting in Accra, Ghana on March 14, 2002. The nine individuals nominated for the IRP Panel included: <ref>[http://www.icann.org/en/meetings/accra/indrev-topic.htm ICANN Accra Meeting Topic: Implementation of Independent Review Policy]</REF>
 
[http://www.icann.org/en/minutes/prelim-report-07may01.htm#01.50 Special Meeting of the Board Preliminary Report May 7, 2001]</ref> Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001.<ref>[http://icannwiki.com/index.php?title=IRP&action=edit&section=1 Open Call to the Internet Community For Nominations to the ICANN IRP]</ref> The IRP Nominating Committee was unsuccessful in completing the list of candidates for the IRP Panel on the deadline set by the ICANN Board and requested an extension. During the ICANN Meeting in Montevideo, the Board approved the request of the IRP Nominating Committee and extended the deadline to submit the list of the candidates for the IRP until October 15, 2001.<ref>[http://www.icann.org/en/minutes/prelim-report-10sep01.htm#ScheduleforIRPNomCom Regular Meeting of the ICANN Board in Montevideo Preliminary Report]</ref> The IRP Nominating Committee was not able to provide a complete list during the extended deadline. Only three members of the committee submitted a list of 9 nominees while the other members did not participate in the process. A report on the status of the committee was submitted during the ICANN Meeting in Accra, Ghana on March 14, 2002. The nine individuals nominated for the IRP Panel included: <ref>[http://www.icann.org/en/meetings/accra/indrev-topic.htm ICANN Accra Meeting Topic: Implementation of Independent Review Policy]</REF>
 
# [[Zoe Baird]] (US)
 
# [[Zoe Baird]] (US)
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# [[Zheng Chengsi]] (CN)
 
# [[Zheng Chengsi]] (CN)
  
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On March 14, 2002, the challenge and difficulties faced by the IRP Nominating Committee was referred to Evolution and Reform Committee, then chaired by [[Alejandro Pisanty]] with Lyman Chapin, Phil Davidson, Hans Kraaijenbrink, and Nii Quaynor serving as members. The Reform and Evolution Committee was created by the ICANN Board to develop a framework for the implementation of reforms on ICANN's structure and procedures.<ref>
+
On March 14, 2002, the challenge and difficulties faced by the IRP Nominating Committee was referred to the Evolution and Reform Committee, then chaired by [[Alejandro Pisanty]] with Lyman Chapin, Phil Davidson, Hans Kraaijenbrink, and Nii Quaynor serving as members. The Reform and Evolution Committee was created by the ICANN Board to develop a framework for the implementation of reforms on ICANN's structure and procedures.<ref>
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[http://www.icann.org/en/minutes/prelim-report-14mar02.htm#02.47 ICANN Meeting in Accra Preliminary Report, March 14, 2002]</ref> ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the Bylaws mandates an independent review process without the involvement of an IRP Nominating Committee.<ref>
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[http://www.icann.org/en/minutes/prelim-report-14mar02.htm#02.47 ICANN Meeting in Accra Preliminary Report, March 14, 2002]</ref> ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the revised Bylaws mandated an independent review process without the involvement of an IRP Nominating Committee.<ref>
 
[http://www.icann.org/en/general/archive-bylaws/bylaws-15dec02.htm The New Bylaws Effective as of December 15, 2002]</ref>
 
[http://www.icann.org/en/general/archive-bylaws/bylaws-15dec02.htm The New Bylaws Effective as of December 15, 2002]</ref>
  
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===Members of the IRP Nominating Committee===
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==Purpose and Process==
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The initial members of the IRP Nominating Committee included:<ref>[http://www.icann.org/en/committees/indreview/nomcom.htm Independent Review Panel Nominating Committee]</ref>
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Under the current [[ICANN Bylaws]], IRP is intended to hear and resolve disputes for nine purposes:
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* [[Tim Berners-Lee]]
+
# Ensure that ICANN does not exceed the scope of its Mission and otherwise complies with its Articles of Incorporation and Bylaws;
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* [[Scott Hemphill]]
+
# Empower the global Internet community and Claimants to enforce compliance with the Articles of Incorporation and Bylaws through meaningful, affordable and accessible expert review of Covered Actions;
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* [[Olivier Iteanu]]
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# Ensure that ICANN is accountable to the global Internet community and Claimants;
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* [[Ching-Yi Liu]]
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# Address claims that ICANN has failed to enforce its rights under the [[IANA Naming Function Contract]];
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* [[Joon Kook Park]]
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# Provide a mechanism by which direct customers of the IANA naming functions may seek resolution of [[PTI]] service complaints that are not resolved through mediation;
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* [[Houlin Zhao]]
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# Reduce Disputes by creating precedent to guide and inform the Board, Officers, Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation;
 +
# Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes;
 +
# Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction; and
 +
# Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.<ref name="art4">[https://www.icann.org/resources/pages/governance/bylaws-en/#article4 ICANN Bylaws], Article 4.3: Independent Review Process, as amended November 2019</ref>
 +
===Definitions===
 +
* ''Covered Actions'' are defined as "any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute."
 +
* ''Disputes'' are defined as:
 +
** Claims that Covered Actions constituted an action or inaction that violated the Articles of Incorporation or Bylaws, including but not limited to any action or inaction that: (1) exceeded the scope of the Mission; (2) resulted from action taken in response to advice or input from any Advisory Committee or Supporting Organization that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (3) resulted from decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (4) resulted from a response to a DIDP (as defined in Section 22.7(d)) request that is claimed to be inconsistent with the Articles of Incorporation or Bylaws; or (5) arose from claims involving rights of the [[Empowered Community|EC]] as set forth in the Articles of Incorporation or Bylaws.
 +
** Claims that ICANN, the Board, individual Directors, Officers or Staff members have not enforced ICANN's contractual rights with respect to the IANA Naming Function Contract; and
 +
** Claims regarding [[PTI]] service complaints by direct customers of the IANA naming functions that are not resolved through mediation.
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** Article 4.3(c) expressly excludes the following types of claims from the scope of the IRP: [[Empowered Community|EC]] challenges to the result(s) of a [[PDP]], unless the Supporting Organization(s) that approved the PDP supports the EC bringing such a challenge; claims relating to [[ccTLD]] delegations and re-delegations; claims relating to Internet numbering resources; and claims relating to protocol parameters.<ref name="art4" /> In other words, the IRP may not be used to appeal or challenge the core functions of ICANN's mission, or undermine bottom-up policy development.
 +
* The ''Cooperative Engagement Process'' is an optional, preliminary, non-binding process "to resolve and/or narrow the Dispute."
 +
*  
  
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==Independent Review of Board Actions==
 
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Under Article IV Section 3 of the ICANN Bylaws, the internet governing body is mandated to develop a separate process for third-party review of Board actions in the event of accusations that the Board decided in contrast with the organization's Bylaws. Complainants are required to submit a request for an independent review of the action or decision. An Independent Review Panel operated by an international dispute resolution provider will handle the case and determine the merit of the accusations and whether ICANN violated its Bylaws via the contested action. The selected IRP is required to submit its operating rules and procedures to the ICANN Board for approval. A three-member IRP is allowed as per request of either party. If there is no request for a three-member panel, the dispute will be resolved by a one-member panel. Members of the IRP must follow the conflict of interest policy as stated in the IRP provider's operating rules and procedures.<ref>[http://www.icann.org/en/general/archive-bylaws/bylaws-15dec02.htm#IV-3 Article IV Section 3 of the ICANN Bylaws December 15, 2002]</ref>
 
  
 
==ICM Registry LLC Request for IRP==
 
==ICM Registry LLC Request for IRP==

Revision as of 19:38, 10 February 2022

The Independent Review Process (IRP) is an ICANN Accountability mechanism that provides third-party review of ICANN's actions.[1]

Overview

The IRP provides a means for claimants to bring their dispute with ICANN to a third party arbiter. It is an arbitration mechanism that seeks to establish precedent and predictability of interpretation of ICANN policy and principles, as well as create an alternative forum for resolving disputes.

Background

The development of the Independent Review Policy began in March, 1999. The initial ICANN Board appointed a 10-member Advisory Committee on Independent Review in charge of developing the principles to structure independent review procedures in compliance with the ICANN Bylaws. On May 7, 1999, the Advisory Committee submitted its interim report with draft principles and an addendum for public review and comment.[2][3]

On August 6, 1999, the Advisory Committee submitted the Final Report: Principles for Independent Review. The ICANN Board published the document for public comment, and accepted it at ICANN 3 in August 1999.[4]

During ICANN 5,, the ICANN Staff submitted the proposed Independent Review Policy. The policy was a guideline on how to implement the principles recommended by the Advisory Committee.[5] The policy was adopted by the ICANN Board on March 10. An Independent Review Panel Nominating Committee was delegated to nominate 9 members who would comprise the Independent Review Panel.[6] The initial members of the IRP Nominating Committee included:[7]

On May 7, 2001, the IRP Nominating Committee received instructions from the Board to seek qualified applicants for membership on the IRP within 90 days.[8] Following the directive, the IRP Nominating Committee issued a call to the Internet community to submit nominations on June 26, 2001.[9] The IRP Nominating Committee was unsuccessful in completing the list of candidates for the IRP Panel on the deadline set by the ICANN Board and requested an extension. During the ICANN Meeting in Montevideo, the Board approved the request of the IRP Nominating Committee and extended the deadline to submit the list of the candidates for the IRP until October 15, 2001.[10] The IRP Nominating Committee was not able to provide a complete list during the extended deadline. Only three members of the committee submitted a list of 9 nominees while the other members did not participate in the process. A report on the status of the committee was submitted during the ICANN Meeting in Accra, Ghana on March 14, 2002. The nine individuals nominated for the IRP Panel included: [11]

  1. Zoe Baird (US)
  2. Diane Cabell (US)
  3. Scott Donahey(US)
  4. David Post (US)
  5. Michael Kirby (AU)
  6. Houston Putnam (US)
  7. Margit Brandl (AT)
  8. Henry Perritt (US)
  9. Zheng Chengsi (CN)

On March 14, 2002, the challenge and difficulties faced by the IRP Nominating Committee was referred to the Evolution and Reform Committee, then chaired by Alejandro Pisanty with Lyman Chapin, Phil Davidson, Hans Kraaijenbrink, and Nii Quaynor serving as members. The Reform and Evolution Committee was created by the ICANN Board to develop a framework for the implementation of reforms on ICANN's structure and procedures.[12] ICANN adopted its new Bylaws on December 15, 2002. Artcle IV Section 3 of the revised Bylaws mandated an independent review process without the involvement of an IRP Nominating Committee.[13]

Purpose and Process

Under the current ICANN Bylaws, IRP is intended to hear and resolve disputes for nine purposes:

  1. Ensure that ICANN does not exceed the scope of its Mission and otherwise complies with its Articles of Incorporation and Bylaws;
  2. Empower the global Internet community and Claimants to enforce compliance with the Articles of Incorporation and Bylaws through meaningful, affordable and accessible expert review of Covered Actions;
  3. Ensure that ICANN is accountable to the global Internet community and Claimants;
  4. Address claims that ICANN has failed to enforce its rights under the IANA Naming Function Contract;
  5. Provide a mechanism by which direct customers of the IANA naming functions may seek resolution of PTI service complaints that are not resolved through mediation;
  6. Reduce Disputes by creating precedent to guide and inform the Board, Officers, Staff members, Supporting Organizations, Advisory Committees, and the global Internet community in connection with policy development and implementation;
  7. Secure the accessible, transparent, efficient, consistent, coherent, and just resolution of Disputes;
  8. Lead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction; and
  9. Provide a mechanism for the resolution of Disputes, as an alternative to legal action in the civil courts of the United States or other jurisdictions.[14]

Definitions

  • Covered Actions are defined as "any actions or failures to act by or within ICANN committed by the Board, individual Directors, Officers, or Staff members that give rise to a Dispute."
  • Disputes are defined as:
    • Claims that Covered Actions constituted an action or inaction that violated the Articles of Incorporation or Bylaws, including but not limited to any action or inaction that: (1) exceeded the scope of the Mission; (2) resulted from action taken in response to advice or input from any Advisory Committee or Supporting Organization that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (3) resulted from decisions of process-specific expert panels that are claimed to be inconsistent with the Articles of Incorporation or Bylaws; (4) resulted from a response to a DIDP (as defined in Section 22.7(d)) request that is claimed to be inconsistent with the Articles of Incorporation or Bylaws; or (5) arose from claims involving rights of the EC as set forth in the Articles of Incorporation or Bylaws.
    • Claims that ICANN, the Board, individual Directors, Officers or Staff members have not enforced ICANN's contractual rights with respect to the IANA Naming Function Contract; and
    • Claims regarding PTI service complaints by direct customers of the IANA naming functions that are not resolved through mediation.
    • Article 4.3(c) expressly excludes the following types of claims from the scope of the IRP: EC challenges to the result(s) of a PDP, unless the Supporting Organization(s) that approved the PDP supports the EC bringing such a challenge; claims relating to ccTLD delegations and re-delegations; claims relating to Internet numbering resources; and claims relating to protocol parameters.[14] In other words, the IRP may not be used to appeal or challenge the core functions of ICANN's mission, or undermine bottom-up policy development.
  • The Cooperative Engagement Process is an optional, preliminary, non-binding process "to resolve and/or narrow the Dispute."


ICM Registry LLC Request for IRP

On June 6, 2008, ICM Registry LLC, a company based in Florida which was established to apply and serve as the .xxx sponsored top level domain name (sTLD) manager filed a request for independent review of Board actions after the ICANN Board rejected its application in March, 2007. The company claimed that ICANN's decision to reject ICM's application were "arbitrary, lacking in transparency and discriminatory," a clear violation of the organization's Bylaws. The complaint was filed by ICM to the International Centre for Dispute Resolution (ICDR) whereby the company asked the IRP to invalidate ICANN's decision. In addition, ICM also requested the IRP to declare that the company fulfilled all the requirements set by the RFP, direct ICANN to immediately execute a Registry agreement between ICANN and ICM and require ICANN to pay all the expenses incurred by the company in conjunction with its .xxx application including legal fees.[15]

On September 8, 2008, ICANN responded to the ICM complaint and pointed out that its decision was "consistent with the organization's Mission Statement, Articles of Incorporation and Bylaws and its negotiations with the company had been open, transparent and in good faith." In addition, ICANN reasoned that its Bylaws required the Board to consider the opinion of the Governmental Advisory Committee (GAC). In the case of .xxx TLD, ICM knew that the string was highly controversial and the GAC raised its concerns regarding the company's proposal. Those concerns were considered by ICANN in its decision. ICANN also explained that it never asserted any commitment or assured the company regarding the approval of its application. Furthermore, the internet governing body pointed out that it did not base its entire decision on the strong recommendation of the Independent Evaluation Panel to deny its application because it did not meet the sponsorship criteria for the application process.[16]

On February 18, 2010, the IRP declared that ICM Registry met the required sponsorship criteria for the .xxx sTLD application process, and that ICANN did not carry out a fair and objective decision. Pursuant to Article IV, Section 3(12) of the Bylaws, the Internet governing body will shoulder the fees and expenses incurred by the ICDR ($4,500) including all the expenses and fees of the IRP ($473,744.91) and reimburse the ICM registry's expenses ($241,372.46).[17]

Manwin Request for IRP

Manwin Licensing International, the owner of numerous licenses and trademarks for adult oriented domain names such as YouPorn and xTube filed a request for an Independent Review Panel on November 16, 2011. The company claimed that the ICANN Board fell short of addressing important issues such as competition, consumer protection, malicious abuse and rights protection prior to its approval of the .xxx TLD. In addition, Manwin alleged that ICANN failed to compel ICM to follow its registry contract and allowed the company to engage in anti-competitive practice and violate IP rights.[18]

References

  1. ↑ ICANN Bylaws, Article 4.3, as amended November 28, 2019
  2. ↑ Interim Report of the Advisory Committee on Independent Review, May 7, 1999
  3. ↑ The documents were publicly discussed at ICANN 2 in May 1999. After deliberations, the ICANN Board accepted the draft principles and the Advisory Committee was instructed to complete its task. ICANN Minutes of Meeting, May 27, 1999
  4. ↑ ICANN Minutes of Meeting August 26, 1999
  5. ↑ ICANN 5 Archive - Proposed Independent Review Policy
  6. ↑ Independent Review Panel Nominating Committee
  7. ↑ Independent Review Panel Nominating Committee
  8. ↑ Special Meeting of the Board Preliminary Report May 7, 2001
  9. ↑ Open Call to the Internet Community For Nominations to the ICANN IRP
  10. ↑ Regular Meeting of the ICANN Board in Montevideo Preliminary Report
  11. ↑ ICANN Accra Meeting Topic: Implementation of Independent Review Policy
  12. ↑ ICANN Meeting in Accra Preliminary Report, March 14, 2002
  13. ↑ The New Bylaws Effective as of December 15, 2002
  14. ↑ 14.0 14.1 ICANN Bylaws, Article 4.3: Independent Review Process, as amended November 2019
  15. ↑ ICM Registry LLC v. ICANN
  16. ↑ ICANN Response to ICM Request for IRP
  17. ↑ Declaration of the Independent Review Panel
  18. ↑ YouPorn challenges new gTLDs with review demand
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